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D'AMBROSIO v. BAGLEY

Nos. 06-3542, 06-3712.

527 F.3d 489 (2008)

Joe D'AMBROSIO, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 5, 2008.

Attorney(s) appearing for the Case

ARGUED: Stephen E. Maher, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellant. John Q. Lewis, Jones Day, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen E. Maher, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellant. John Q. Lewis, Edward J. Sebold, Jones Day, Cleveland, Ohio, for Appellee.

ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. BOGGS, C.J. (p. ___), delivered a separate opinion dissenting in part.

OPINION

ROGERS, Circuit Judge.

Joe D'Ambrosio was convicted of murdering Anthony Klann in 1988. After D'Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district court granted the writ. On appeal, the warden argues, for the first time, that D'Ambrosio failed to exhaust his Brady claim and should be...

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